Copying, Not Trolling, Is “Fair Use”

Mises blog post by Skip Oliva:

Copying, Not Trolling, Is “Fair Use”

June 21, 2011 by S.M. Oliva

Yesterday a federal judge in Las Vegas held that reproducing an entire article online can fall within the “fair use” exception to copyright law. In dismissing a copyright infringement case brought by a company called Righthaven, LLC — described by Wired as a “newspaper copyright troll” — Judge Philp M. Pro made two important findings. First, he rejected the standing of third-party assignees like Righthaven to bring copyright lawsuits, and second, he found thatthere was a strong presumption of fair use when materials are reproduced online for “noncommercial” purposes.

Righthaven, owned by attorney Steven Gibson, acquires newspaper copyrights for the express purpose of suing websites that reproduce the original newspaper’s material. As Judge Pro explained, the newspaper, in this case the Las Vegas Review-Journal, “assigned” its right to sue for infringement to Righthaven, subject to the newspaper’s right to revoke the assignment or direct Righthaven not to pursue a particular case:

Stephens Media [the Journal’s owner] has the unilateral right, at any time, to terminate the Copyright Assignment and enjoy a complete right of reversion. These carveouts deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement and leave Righthaven no rights except to pursue infringement actions, a right which itself is subject to Stephens Media’s veto.

Furthermore, Righthaven had no right to “exploit” the Journal’s copyrighted material except for bringing infringement lawsuits. Accordingly, Judge Pro said Righthaven could not maintain a copyright infringement lawsuit, since it was not the legitimate owner of the material at issue.

That said, Judge Pro further explained why, even if Righthaven had standing, this particular complaint must be dismissed. The defendant, Wayne Hoehn, had posted the entire text of a Journal article, with attribution, on the website madjacksports.com, a forum for people interested in sports handicapping. Hoehn was not the website’s owner, just a user. “It is undisputed that Hoehn did not and could not profit from posting” the Journal’s article, Judge Pro noted. Hoehn said he posted the article “to foster discussion…regarding the recent budget shortfalls facing state governments.” That alone suggests fair use, Judge Pro said.

Additionally, Judge Pro considered three other factors. First, the nature of the work suggested a broad allowance for fair use:

The Work is a  combination of an informational piece with some creative elements. Roughly eight of the nineteen paragraphs of the Work provide purely factual data, about five are purely creative opinions of the author, and the rest are a mix of factual and creative elements. While the Work does have some creative or editorial elements, these elements are not enough to consider the Work a purely “creative work” in the realm of fictional stories, song lyrics, or Barbie dolls. Accordingly, the Work is not within “the core of intended copyright protection.”

Second, Judge Pro looked at the fact Hoehn reproduced the entire work rather than just part of it. The judge concluded, “[W]hile wholesale copying of the Work shifts this factor against finding fair use, wholesale copying does not preclude a finding of fair use.”

Finally, Judge Pro examined Righthaven’s argument that Hoehn’s posting the article online somehow “damaged” the commercial market for the Journal’s original article:

Righthaven argues that the market for the Work was impacted negatively because potential readers are able to read the Work on the Website and would have no reason to view the Work at its original source of publication. However, Righthaven has not presented any evidence of harm or negative impact from Hoehn’s use of the Work on the Website between November 29, 2010 and January 6, 2011. Merely arguing that because Hoehn replicated the entirety of the Work the market for the Work was diminished is not sufficient to show harm.

This last point may prove to be the most helpful in combatting future copyright trolling cases. The copyright lobby expends a great deal of energy maintaining, without evidence, that copying “diminishes” the market for a given work. In most cases just the opposite is true. The free movement of information allows for the near-limitless expansion of interest in a particular work or author. This is not a zero-sum game. And it’s good that some judges recognize as much.